CRIMINAL APPLICATION NO 102 06 OF 2019 SONG LEI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. J.A.. KENTE, J.A. And MDEMU. J.A.l CRIMINAL APPLICATION NO. 102/06 OF 2019 SONG LEI....... ......... ......... ........ ............ .......................... APPLICANT VERSUS THE REPUBLIC.................................................. ..................... RESPONDENT (Application for Review of the judgment of the Court of Appeal of Tanzania at Mbeya) fMuaasha, Ndika and Sehel. JJ3A.) Dated the 30th day of August, 2019 in Consolidated Criminal Appeals Nos. 16A of 2016 & 16 of 2017 RULING OF THE COURT 10th June & 18tf) July, 2024 KENTE. 3.A.: This application invokes our review jurisdiction as provided for under section 4(4) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Edition (the AJA). Needless to say, the scope of the powers conferred upon this Court to review its judgments or orders, is spelled out very clearly in Rule 66 (1) of the Tanzania Court of Appeal Rules, 2009 (hereinafter the Rules) which provides that: "66 (1) The Court may review its judgment or order, but no application for review shaii be entertained except on the foilowing grounds: (a) the decision was based on a manifest error on the face of the record resuiting in the miscarriage ofjustice; (b) a party was wrongiy deprived of an opportunity to be heard; (c) the court's decision is a nuiiity; or (d) the court had no jurisdiction to entertain the case; (e) the judgment was procured illegally, or by fraud or perjury". The present application is taken out under section 4(4) of the AJA together with Rule 66 (1) (a) and (b) of the Rules. It is supported by an affidavit affirmed by the applicant, one Song Lei who is a convict currently serving a twenty years imprisonment sentence meted out on him by the Court of the Resident of Magistrate of Mbeya (at Mbeya) and subsequently sustained by the High Court of Tanzania, (sitting at Mbeya) and finally by this Court, upon further appeal. The background facts upon which the application is premised, are briefly as follows: The applicant and three others not parties to this application, were arraigned before the Court of the Resident Magistrate of Mbeya (at Mbeya) where they were charged with three counts of leading organised crime, unlawful dealing in trophies and unlawful possession of Government trophies. That was in respect of Economic Crimes Case No. 6 of 2015. As would be expected, all accused persons refuted the accusations leveled against them. However, after a full trial, they were convicted as charged and sentenced to fifteen years imprisonment each, in respect of the first count. As for the second count, they were sentenced to pay a fine of USD 836,000.00 or to three years imprisonment upon default and, to twenty years imprisonment together with a fine of USD 4,180,000.00 in respect of the third count. Aggrieved by the conviction and sentences meted out on them by the trial court, the trio appealed to the High Court where the appeal by the applicant's co-accuseds was allowed in its entirety. The applicant's appeal was partly allowed in the sense that, the first appellate court quashed his conviction and set aside the sentence imposed on him in respect of the first count while the convictions and sentences in respect of the second and third counts were sustained. Still aggrieved and undaunted, the applicant appealed to this Court but all to no avail. On the other hand, the DPP also appealed against the decision of the High Court acquitting the applicant's three co-appellants with the offences of unlawful dealing in trophies and unlawful possession of Government trophies. In its judgment dated 30th August, 2019, while dismissing the appeal by the DPP, the Court also took the view and it accordingly concluded that, the charges levelled against the applicant before the trial court, were proved beyond doubt. On that account, the Court went on holding that, it had no plausible reason, to vary or otherwise interfere with the concurrent findings of the trial and the first appellate courts. Accordingly, it found the applicant's appeal utterly bereft of merit and went on dismissing it. However, in what appears to be a never-ending pursuit of justice, the applicant has now invoked the review jurisdiction of this Court contending that: 4 1. The decision of the Court was based on a manifest error on the face of the record resulting in miscarriage of justice to wit; (a) The Court did not effectively deal with the documentary exhibits which were put in evidence at the trial and which were very crucial for the determination of the appeal, but it proceeded to determine the appeal in the absence of the said crucial evidence and hence arrived at a wrong conclusion. (b) The Court erred by failing to adhered to, its own practice and procedure, since it proceeded with the hearing of the appeal without a properly constituted record of appeal and hence violated the mandatory requirement of Rule 71 of the court Ruies. (c) The Court erred by disregarding its own order delivered on 14th day of December, 2018 which required the prosecution to return all the original documentary exhibits to the Registrar of the High Court of Tanzania at Mbeya. 2. The applicant was wrongly deprived of an opportunity to be heard to, wit; (a) In re-evaluating and re analysing the evidence on record upon which the decision of the court was based, all crucial documentary exhibits which were put in evidence at the trial were not scrutinized by the court to satisfy themselves on the propriety or legality of the exhibits put in evidence and hence subjected to an unfair trial. Before us, the applicant who appeared in person without any legal representation, had nothing substantial to expound on his grounds of review. After having adopted the notice of motion, the supporting affidavit and the written submissions, he beseeched us to grant the application and finally order for his immediate release from prison. For her part, Ms. Mossie Kaima, learned State Attorney who appeared for the respondent/the Republic, was very brief but direct to the point. After she informed the Court that she was opposing to the application, the learned State Attorney submitted that, the applicant's complaints essentially centered on the documentary exhibits and the alleged incompleteness of the record of appeal. 6 With regard to the record of appeal, Ms. Kaima submitted correctly so in our view that, this complaint was baseless as it was never put to the Court during the hearing of the appeal and that, as a result, the Court went on hearing and determining the appeal without any difficulty. Regarding the applicant's second complaint that he was denied the right to be heard, it was the learned State Attorney's brief submission that, apart from the complaint that the Court had not seen the exhibits tendered during the trial, the applicant had not shown how his right to be heard was denied or otherwise infringed. All in all, Ms. Kaima was of the firm view that, none of the grounds upon which the application was premised met the conditions stipulated under Rule 66 (1) (a) and (b) of the Rules as to form the ground of review. We were accordingly urged by the learned State Attorney to dismiss the application for want of merit. Now, as it can be gleaned from the notice of motion, the gravamen of the applicant's grief is essentially on the alleged non-evaluation and mishandling of documentary exhibits. To be exact, under item 1 (a), without elaborating, the applicant is complaining that the Court did not effectively deal with the documentary exhibits which were central to the determination of the appeal. Under item 1 (b), the applicant is lamenting that the Court went on to hear and determine the appeal without having in its possession a properly constituted record of appeal and, under item 1 (c), he is faulting the Court for allegedly disregarding its own order dated 14th December, 2018 requiring the prosecution to return all original documentary exhibits to the Deputy Registrar of the High Court at Mbeya. In Item 2, the applicant is faulting the Court for allegedly not scrutinizing the evidence on the record so as to satisfy itself regarding the propriety and legality of all the exhibits put in evidence. On this point, the applicant complained generally in his written submissions that, as a result, he was subjected to an unfair trial as he was deprived of the opportunity to be heard. We have carefully considered the facts and materials presented before us. In deciding whether or not, a case has been made out by the applicant to warrant review of the impugned judgment of the Court, it seems to us that the proper approach is to state as we did in the case of Golden Globe International Services and Another v. Millicom (Tanzania) N. V. and Another, Civil Application No. 195/01/2017 (unreported) that, in the exercise of its powers of review, this Court is guided by the laid down principles emanating from various jurisprudence both within and outside our jurisdiction. In the case nearer if not home, of Angella Amudo v. The Secretary General of the East African Community, Civil Application No. 4 of 2015 (unreported) which we cited with approval in Golden Globe International Services (supra), the East African Court of Justice (Appellate Division), it was held that: "(a) The principle underlying a review is that the court would not have acted as it had, if all the circumstances had been known.... (b) There are definite limits to the exercise o f the power of review. The review jurisdiction is not by way of an appeal. The purpose of review is not to provide a backdoor method to unsuccessful litigants to re-argue their case. Seeking the re-appraisal of the entire evidence on record for finding the error, would amount to the exercise of appellate jurisdiction which is not permissible... (c) The power of review is limited in scope and is normally used for correction of a mistake but not to substitute a view in law. This is because no judgment however elaborate it may be can satisfy each of the parties involved to the full extent... (d) A judgment of the final court is final and review o f such judgment is an exception. (e) In review jurisdiction, mere disagreement with the view o f the judgment cannot be a ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.... (f) There is a dear distinction regarding the effect o f an error on the face of the record and an erroneous view of the evidence or iaw. An erroneous view may not be exercised on the ground that the decision was erroneous on merit... (g) It will not be sufficient ground for review that another judge would have taken a different view. Nor can it be a ground for review that the court preceded on incorrect exposition o f the iaw.... (h) A Court will not sit as a court of appeal from its own decisions, nor will it entertain applications for review on the ground that one o f the parties in the case conceived himseif to be aggrieved by the decision. It wouid be intolerable and 10 most prejudicial to the public interest if cases once decided by the court could be re-opened and re-heard.... (i) The term mistake or error on the face o f the record'by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elaboration either of the facts or the legal position. I f an error is not self-evident and detection thereof requires a long debate a process of reasoning, it cannot be treated as an error on the face o f the record. To put it differently, it must be such as can be seen by one who runs and reads...." As we have already indicated, the two reasons why the applicant has urged us to review our earlier decision are that, the said decision was based on a manifest error on the face of the record which resulted into a miscarriage of justice and that, he was wrongly deprived of the right to be heard. With due respect, our view is that all the two grounds proffered by the applicant are not the kind of grounds that would suffice for this Court to invoke its powers of review in terms of section 4 (4) of the AJA and Rule 6 (1) (a) and (b) of the Rules. If the wording of the notice of motion and the li grounds advanced in support of the application are anything to go by, it is certainly clear that, what is being challenged by the applicant is the validity of the judgment of this Court, pure and simple. Put in other words, the purpose of the applicant which is strategically cloaked in the guise of an application for review under the above - cited provisions of the law, is nothing else but an appeal. Given the circumstances, it may not be irrelevant to observe that, this Court has persistently taken the position that where, as in the present case, it is the opinion of the aggrieved party in a legal dispute that the Court has come to an erroneous decision either in regard to a fact or law, then any amelioration of such a decision cannot be by way of review. Needless to say, bearing in mind the public policy that litigation must come to an end, and that no judgment can satisfy each of the parties involved in a dispute in every way, this Court has times without number, consistently desisted from being dragged into this pitfall of rehearing matters which have already been adjudicated and finally concluded. Upon the foregoing discussion of the law, we are of the final view that the applicant has not furnished sufficient grounds to warrant review of the decision of the Court in terms of Rule 66 (1) (a) and (b) of the Rules. In the upshot, we find the application to be wanting in merit and we accordingly dismiss it DATED at DAR ES SALAAM this 26th day of June, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 18th day of July, 2024 in the presence of the Applicant in person vide video link from Segerea Prison and Ms. Mossie Kaima, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL